State DEP scores legal win on its water rules

Published: Tuesday, February 26, 2013 at 5:25 p.m.

Last Modified: Tuesday, February 26, 2013 at 5:25 p.m.

The Florida Department of Environmental Protection scored a legal victory this week when Florida's 1st District Court of Appeal upheld a 2012 administrative law judge's ruling that state regulators acted within their authority by establishing Florida's own water nutrient rules.

The ruling Monday was the latest in a series of legal parries that date back to 1998, when the U.S. Environmental Protection Agency first ordered Florida and other states to come up with more stringent freshwater standards. Florida didn't comply, so state environmentalists sued the EPA to force the federal agency to develop water nutrient standards for the state if it wouldn't do so on its own.

When the EPA put forth a set of rules three years ago, Florida lawmakers, utilities and businesses complained they were too harsh. Later, the FDEP developed its own set of rules, based, in part, on EPA standards. The Florida Legislature later adopted the FDEP rules as the state's own guidelines.

In December 2011, a group led by the Florida Wildlife Federation and the Sierra Club filed a petition with the state Division of Administrative Hearings challenging the new state rules. Florida Administrative Law Judge Bram Canter, in mid-2012, ruled that the FDEP acted within its authority. On Monday, that ruling was upheld.

Meanwhile, in November 2012, the EPA approved the FDEP's water nutrient rules as sufficient and withdrew its own pollutant nutrient rules.

The water nutrient standards will regulate nitrogen and phosphorus, which, in excess, cause algae blooms and are dangerous to fish and wildlife. Those nutrients typically come from fertilizers, septic tanks, wastewater and manure.

The FDEP is currently writing implementation documents that will dictate how it oversees its new water standards for springs, lakes and rivers. Those rules will include guidelines for such things as discharge permits and how waters will be monitored for compliance.

The FDEP is accepting public input and suggestions for writing those rules, which it will then pass on to the EPA for approval. People can contact the FDEP at 850-245-8429 to submit suggestions.

The FDEP's rules do not cover all coastal waters and most estuaries. Therefore, the EPA is still moving forward with its federal rules for those waters. FDEP rules also do not apply to South Florida waters.

Until now, Florida used primarily qualitative standards to decide whether its waters were polluted. That meant if the water and its associated wildlife and vegetation appeared healthy, then the water body met Florida's standards, regardless of the level of nutrients. The state now will use numerical standards in combination with biological ones. That means the FDEP will consider the biological health of a water body — in addition to numeric standards — in deciding whether a water body is impaired.

Although the state agency's nutrient rules are similar to those originally proposed by the federal agency, environmentalists opposing FDEP rules complained because that agency also incorporates a water body's biological health in its evaluations. They say the water body would have to be polluted before the state could protect it, rather than keeping excessive levels of nutrients out of the water in the first place.

The debate hits close to home and the state agency has not had a good track record of protecting area waters. In Marion County, pollution levels for Silver Springs and Rainbow Springs are three times higher than the new FDEP limits. Only the secluded Silver Glen is well under the limit.

Popular Lake Weir also routinely failed to meet total nitrogen standards, with levels sometimes reaching double what the FDEP will allow.

And the county's rivers don't fare much better. The Ocklawaha, Withlacoochee and Rainbow rivers consistently surpass river standards.

The debate is far from over, said EarthJustice attorney David Guest, who is predicting a lengthy legal battle. Guest was the lawyer who spearheaded efforts to force EPA in 2008 to come up with nutrient standards for Florida because the FDEP wouldn't do so. He said FDEP's rules do not apply anywhere in the state because of a "poison pill" in the Florida legislation that says unless the FDEP rules are adopted in their entirety by the EPA without modification, the standards will not go into effect.

Guest said that criteria should keep the EPA from accepting FDEP's rules because the federal agency cannot promise never to come back and cite shortcomings in Florida's nutrient standards.

The EPA, in emails to the Star-Banner, said the criteria issue, which it refers to as the "all or nothing provision," doesn't stop the agency from approving FDEP's nutrient rules in place of its own federal rules but is hedging its bets in case it is misinterpreting the legislation.

EPA would not grant an interview request, but cited its website explanation of the nutrient rule changes, which states: "It is EPA's understanding that the all-or-nothing provisions are not triggered by the actions EPA is taking. However, if those provisions are interpreted in a manner that prevents FDEP's numeric nutrient criteria from becoming effective … then EPA will finalize (its own) numeric nutrient criteria…"

Guest said he doesn't understand how the poison pill doesn't keep EPA from approving FDEP's rules.

Drew Bartlett, of FDEP's division of environmental assessment and restoration, said he saw nothing blocking the EPA from approving the FDEP nutrient rules.

Meanwhile, Guest said FDEP's patchwork of rules combining numeric nutrient limits with makeshift biological standards results in the most complex nutrient guidelines he's ever encountered. He described the nutrient rule combination as a series of chutes and complex pathways involving previous biological studies that will take years for anyone interpreting the rules to understand, much less apply.

As for future litigation, Guest predicts a lot of it, especially if EPA's rules apply. In the meantime, Florida's waters will suffer from a continued lack of protection by the FDEP, he said.

"(EPA nutrient rules) are going to be challenged by everyone under the sun," Guest said. "This is litigation that will go on forever."

<p>The Florida Department of Environmental Protection scored a legal victory this week when Florida's 1st District Court of Appeal upheld a 2012 administrative law judge's ruling that state regulators acted within their authority by establishing Florida's own water nutrient rules.</p><p>The ruling Monday was the latest in a series of legal parries that date back to 1998, when the U.S. Environmental Protection Agency first ordered Florida and other states to come up with more stringent freshwater standards. Florida didn't comply, so state environmentalists sued the EPA to force the federal agency to develop water nutrient standards for the state if it wouldn't do so on its own.</p><p>When the EPA put forth a set of rules three years ago, Florida lawmakers, utilities and businesses complained they were too harsh. Later, the FDEP developed its own set of rules, based, in part, on EPA standards. The Florida Legislature later adopted the FDEP rules as the state's own guidelines.</p><p>In December 2011, a group led by the Florida Wildlife Federation and the Sierra Club filed a petition with the state Division of Administrative Hearings challenging the new state rules. Florida Administrative Law Judge Bram Canter, in mid-2012, ruled that the FDEP acted within its authority. On Monday, that ruling was upheld.</p><p>Meanwhile, in November 2012, the EPA approved the FDEP's water nutrient rules as sufficient and withdrew its own pollutant nutrient rules.</p><p>The water nutrient standards will regulate nitrogen and phosphorus, which, in excess, cause algae blooms and are dangerous to fish and wildlife. Those nutrients typically come from fertilizers, septic tanks, wastewater and manure.</p><p>The FDEP is currently writing implementation documents that will dictate how it oversees its new water standards for springs, lakes and rivers. Those rules will include guidelines for such things as discharge permits and how waters will be monitored for compliance.</p><p>The FDEP is accepting public input and suggestions for writing those rules, which it will then pass on to the EPA for approval. People can contact the FDEP at 850-245-8429 to submit suggestions.</p><p>The FDEP's rules do not cover all coastal waters and most estuaries. Therefore, the EPA is still moving forward with its federal rules for those waters. FDEP rules also do not apply to South Florida waters.</p><p>Until now, Florida used primarily qualitative standards to decide whether its waters were polluted. That meant if the water and its associated wildlife and vegetation appeared healthy, then the water body met Florida's standards, regardless of the level of nutrients. The state now will use numerical standards in combination with biological ones. That means the FDEP will consider the biological health of a water body — in addition to numeric standards — in deciding whether a water body is impaired.</p><p>Although the state agency's nutrient rules are similar to those originally proposed by the federal agency, environmentalists opposing FDEP rules complained because that agency also incorporates a water body's biological health in its evaluations. They say the water body would have to be polluted before the state could protect it, rather than keeping excessive levels of nutrients out of the water in the first place.</p><p>The debate hits close to home and the state agency has not had a good track record of protecting area waters. In Marion County, pollution levels for Silver Springs and Rainbow Springs are three times higher than the new FDEP limits. Only the secluded Silver Glen is well under the limit.</p><p>Popular Lake Weir also routinely failed to meet total nitrogen standards, with levels sometimes reaching double what the FDEP will allow.</p><p>And the county's rivers don't fare much better. The Ocklawaha, Withlacoochee and Rainbow rivers consistently surpass river standards.</p><p>The debate is far from over, said EarthJustice attorney David Guest, who is predicting a lengthy legal battle. Guest was the lawyer who spearheaded efforts to force EPA in 2008 to come up with nutrient standards for Florida because the FDEP wouldn't do so. He said FDEP's rules do not apply anywhere in the state because of a "poison pill" in the Florida legislation that says unless the FDEP rules are adopted in their entirety by the EPA without modification, the standards will not go into effect.</p><p>Guest said that criteria should keep the EPA from accepting FDEP's rules because the federal agency cannot promise never to come back and cite shortcomings in Florida's nutrient standards.</p><p>The EPA, in emails to the Star-Banner, said the criteria issue, which it refers to as the "all or nothing provision," doesn't stop the agency from approving FDEP's nutrient rules in place of its own federal rules but is hedging its bets in case it is misinterpreting the legislation.</p><p>EPA would not grant an interview request, but cited its website explanation of the nutrient rule changes, which states: "It is EPA's understanding that the all-or-nothing provisions are not triggered by the actions EPA is taking. However, if those provisions are interpreted in a manner that prevents FDEP's numeric nutrient criteria from becoming effective … then EPA will finalize (its own) numeric nutrient criteria…"</p><p>Guest said he doesn't understand how the poison pill doesn't keep EPA from approving FDEP's rules.</p><p>Drew Bartlett, of FDEP's division of environmental assessment and restoration, said he saw nothing blocking the EPA from approving the FDEP nutrient rules.</p><p>Meanwhile, Guest said FDEP's patchwork of rules combining numeric nutrient limits with makeshift biological standards results in the most complex nutrient guidelines he's ever encountered. He described the nutrient rule combination as a series of chutes and complex pathways involving previous biological studies that will take years for anyone interpreting the rules to understand, much less apply.</p><p>As for future litigation, Guest predicts a lot of it, especially if EPA's rules apply. In the meantime, Florida's waters will suffer from a continued lack of protection by the FDEP, he said.</p><p>"(EPA nutrient rules) are going to be challenged by everyone under the sun," Guest said. "This is litigation that will go on forever."</p><p><i>Contact Fred Hiers at 867-4157 or fred.hiers@starbanner.com.</i></p>